An “obvious risk” is a risk that would be obvious to a reasonable person in the position of the person who suffers harm. The determination of obvious involves a ‘forward looking enquiry’ as to whether the risk that eventuated would have been obvious to the hypothetical reasonable person. This means that both the factual scenario facing a plaintiff and the risk itself would be apparent to, and recognised by, a reasonable person exercising ordinary perception, intelligence and judgement.
The risk may be obvious even if it is not prominent, conspicuous or physically observable and has a low probability of occurring. An obvious risk is one that is clearly apparent or easily recognised or understood. Although the focus of inquiry is not upon the plaintiff but, rather, is upon a reasonable person in the position of the plaintiff, the Court will take into account the age and level of experience of the plaintiff. The plaintiff’s actual knowledge of the risk of harm is irrelevant if it is deemed to be obvious.
It would be wrong to focus on the occurrence and pose it as the ultimate question as to whether what occurred could have been avoided with reasonable care and skill.
A waiver in a contract for recreational services to the effect that a person engages in the activity at ‘their own risk’, will not generally exclude liability resulting from breach of express or implied warranties that the service will be provided with due care and skill. A risk warning must at least disclose the general nature of the risk and, while it is not necessary that the plaintiff actually receives or understands the warning, it must be given (either orally or in writing) in a manner reasonably capable of putting people on notice of the risk before they engage in the activity. The content of a risk warning does not need to specifically refer to a particular risk, and can be a general warning of risks that would include the particular risk concerned.
For a recreational activity to be considered “dangerous”, it must involve a significant risk of physical harm. This involves an objective assessment of the riskiness of the activity, taking into account the probability of physical harm and the seriousness of the harm which would or might then result. Significant risk means a risk that is ‘more than trivial’. It does not mean a risk that is ‘likely to occur’ but is somewhere between a trivial risk and a risk that is likely to materialise.
The definition of ‘dangerous recreational activity’ must be read as a whole and determined objectively. Regard must be had to both the nature and degree of the harm that might be suffered, on the one hand, and the likelihood of the risk materialising, on the other. Factors such as the time, place, competence, age, sobriety, equipment and even the weather may make dangerous a recreational activity, which would not otherwise involve a risk of harm.
A recent decision of the NSW Court of Appeal in Goode v Angland1 confirmed that what constitutes a “recreational activity” is very broadly defined.
An important aspect of that decision, which involved a jockey who suffered serious injuries that he alleged were caused by the negligent interference of another jockey during a horse race in Queanbeyan, is that the definition of “recreational activity” under s.5K(a) of the Civil Liability Act, 2002 (NSW) (CLA), broadly includes “any sport” – so there is no distinction for the purposes of the defence between sport undertaken for enjoyment, relaxation or leisure – using the words of s.5K(b) – and sport pursued in a professional capacity.
In taking this approach the court expressly rejected the Tasmanian Supreme Court’s approach in Dodge v Snell (2011) construing the definition of “Dangerous Recreational Activity” having regard to the term “Recreational” – which the Tasmanian Court held imparted a notion of a pleasant pastime, and what is considered in Tasmania the antithesis of paid employment – so that the definition was considered not to extend to professional sports.
An ongoing issue, particularly for sporting organisations and their liability insurers is how to maximise the prospects making out a defence based on the materialisation of an obvious risk.
Overall, there is a restricted capacity to exclude liability or to contract out of liability in respect of the provision of recreational services, such as by the use of a sign or provision of a waiver.
The Goode v Angland decision is an important development particularly for sports clubs, sporting organisations and administrators of sports events – whether amateur or professional – and their liability insurers, because it confirmed that immunity under s.5L of the CLA is available to sports people and their organisations when participants are injured in dangerous recreational activities, in certain circumstances. The availability of the immunity is of particular relevance in claims involving concussion, head and neck injuries, which call into issue the allocation of risk and responsibility in contact sports that are inherently dangerous.
In circumstances where the interpretation of the statutory defence in relation to recreational activity was previously relatively narrow, this approach puts further emphasis on the importance of personal responsibility, more in line with the common law defence of Volenti non fit iniuria (“to a willing person, injury is not done”).
This article was written by Jason Stevens, Partner and Tristan Devaris, Senior Associate.
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1 Goode v Angland  NSWCA 311.